Employee Leave (FMLA and ADA) – Labor & Employment Reporthttps://www.laboremploymentreport.com
Management’s Workplace Blog – Information and Insights for EmployersMon, 18 Mar 2019 15:36:44 +0000en-UShourly1https://wordpress.org/?v=4.9.10Oh, the Weather Outside is Frightful (I think I Need a Sick Day)!!https://www.laboremploymentreport.com/2019/01/03/oh-the-weather-outside-is-frightful-i-think-i-need-a-sick-day/
https://www.laboremploymentreport.com/2019/01/03/oh-the-weather-outside-is-frightful-i-think-i-need-a-sick-day/#respondThu, 03 Jan 2019 13:39:06 +0000https://www.laboremploymentreport.com/?p=3163Whether you are looking out your window at the wonder of snow or trying to prognosticate when it will hit, one thing is for sure. If you are in a state with mandatory sick leave, employees may be invoking their right to no-questions-asked leave when you otherwise prohibit any excuses. Such “no excuse” policies are common during snow events at businesses that must provide service – hospitals, property management companies, no-stop assembly lines. Think patients to be cared for, sidewalks to be cleared, machines that will seize without humans.

Why invoke statutory sick leave? Maryland and many states don’t permit employers to require a doctor’s note for absences of less than two or three consecutive shifts (three in Maryland). Regardless of your political position on paid sick leave, there is not denying that the right to be absent without penalty or verification is a recipe for abuse.

What’s an employer to do where it cannot provide critical services when employees are absent? Although there is no “magic bullet” employers can implement uniform procedures for any snow-day absence that might deter abuse.

Make the advance notice of absence on snow days a longer period (i.e. rather than 1 hour, make it 4 hours) if your sick leave law allows it. Maryland’s law recognizes that if an employee fails to follow the call in procedure AND the absence will cause a disruption, sick and safe leave (SSL) may be denied. Employees who dishonestly use leave aren’t always good planners, so they might incur some adverse consequence for calling out under this policy.

A couple of caveats, though. The burden of proving disruption likely will be yours, and Maryland, like most states with sick leave laws, excuses compliance with a call in procedure if it interferes with the ability of the employee to use the SSL.

Require employees to sign certifications whenever they take leave on snow days that identifies the reason that the leave was taken, who if anyone can verify that it was for the stated purpose and that the employee understands that if he/she is found to have used it for any other reason, he/she will be subject to discipline.

Require a meeting with HR to discuss the reason for any absence on a snow day. When people have to explain themselves, it may make them less likely to try to abuse leave.

Our fellow blogger and #WorklawNetwork colleague, #JeffNowak, offers some similar advice and more on deterring weather-related leave abuse under the Family and Medical Leave Act that we highly recommend. Check out his tips here.

]]>https://www.laboremploymentreport.com/2019/01/03/oh-the-weather-outside-is-frightful-i-think-i-need-a-sick-day/feed/0Employers Beware: What You Say Can and Will Be Used Against You!https://www.laboremploymentreport.com/2018/11/16/employers-beware-what-you-say-can-and-will-be-used-against-you/
https://www.laboremploymentreport.com/2018/11/16/employers-beware-what-you-say-can-and-will-be-used-against-you/#respondFri, 16 Nov 2018 18:04:31 +0000https://www.laboremploymentreport.com/?p=3130Any HR professional who has dealt with the Family and Medical Leave Act knows that determining when and how the statute applies can be very tricky. One thing that is clear, however, is that employees who have worked for less than one year and have not worked a total of 1250 hours are not eligible for FMLA leave and thus are not protected by the statute. Or so we thought! A case from last week, Reif v. Assisted Living by Hillcrest, LLC, dispels the notion that employees who have worked for less than a year are never subject to the protections of the FMLA.

The employee in that case worked as an administrative assistant at an assisted living facility. After she began experiencing hip and knee pain, she learned from her doctor that she would need surgery to correct the problem. At the time, she had been working for her employer for less than a year. She informed the human resources coordinator at her facility that she intended to take time off to have the surgery once she became eligible for FMLA. The human resources coordinator allegedly told the employee that she could take FMLA leave once she reached her one-year anniversary, which was approximately two weeks away. Accordingly, the employee scheduled her surgery for a date shortly after she became FMLA-eligible.

The human resources coordinator, after consulting with the head of the facility where the employee worked, later told the employee that she needed to send her home because she was a liability to the company and they did not want her to injure herself further and file a worker’s compensation claim against the company. In addition, according to the employee, the human resources coordinator told her that she needed to schedule her surgery as soon as possible and that she would work with her to get her FMLA approved (even though she had not yet worked a full year). She also indicated to the employee that her job would be available once she was able to return to work.

Based on these alleged statements, the employee submitted an FMLA application with a leave start date that was before her one-year anniversary and moved her surgery up from the date it had been originally scheduled. A few days after her surgery, the employee received a letter acknowledging her FMLA request but stating that she was not eligible for FMLA. Her doctor provided a note saying she could return to work with certain work restrictions, including that she not put weight on her right leg and that she use an assistive device for mobility in order to perform her job duties. Nonetheless, the employer informed the employee that her position was no longer available.

The employee filed suit, claiming that the employer interfered with her attempt to take FMLA leave and discriminated against her on account of such attempt. The employer filed a motion to dismiss, claiming that the employee was not an “eligible employee” under the FMLA at the time she requested leave and had her surgery. In denying the employer’s motion, the court noted that the employer “would be on solid ground as far as the FMLA is concerned if [the employee] had simply taken off for her surgery on her own prior to becoming eligible for FMLA leave.” However, the court noted, in this case, the employee was allegedly encouraged by the employer’s human resources coordinator to move her surgery up and was assured that her job would be waiting for her once she recovered. As such, the court held, “[i]t would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would be eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”

This case is a textbook illustration of the importance of clear communication with employees that is backed up by written documentation. While this ruling involved a motion to dismiss, where the employee’s allegations in the complaint are assumed to be true, if the employer took steps to document the conversations between the human resources coordinator and the employee, such as by sending e-mails to the employee, then the employer will have a much easier time defending the case.

Statements such as those alleged by the employee in the complaint make me cringe because it could expose the employer not only to FMLA liability but also to liability under the Americans with Disabilities Act. It seems to me the employee could have also alleged that she was disabled, or at least that the employer regarded her as disabled, the employer required her to take leave rather than continue working, and that the employer fired her rather than accommodate her work restrictions. So be careful what you say and make sure to document your conversations in case an employee tries to use your statements as the basis for a lawsuit.

]]>https://www.laboremploymentreport.com/2018/11/16/employers-beware-what-you-say-can-and-will-be-used-against-you/feed/0New Jersey Paid Sick Leave Takes Effect October 29, 2018https://www.laboremploymentreport.com/2018/10/22/new-jersey-paid-sick-leave-takes-effect-october-29-2018/
https://www.laboremploymentreport.com/2018/10/22/new-jersey-paid-sick-leave-takes-effect-october-29-2018/#respondMon, 22 Oct 2018 15:22:46 +0000https://www.laboremploymentreport.com/?p=3110On May 2, 2018, the New Jersey Paid Sick Leave Act was signed into law by Governor Phil Murphy. That Act, which requires all employers to provide paid sick leave to their employees (with some exceptions), is scheduled to go into effect on October 29, 2018. A summary of the Act’s requirements and obligations is provided below:

Purpose of Leave: The employee may use paid sick leave for the following reasons:

Aid or care for a family member during diagnosis, care or treatment of—or recovery from—the family member’s mental or physical illness, injury, or adverse health condition, including preventive medical care.

Circumstances related to an employee’s or their family member’s status as a victim of domestic or sexual violence (including the need to obtain related medical treatment, seek counseling, relocate, or participate in related legal services).

Closure of an employee’s workplace or of a school/childcare of an employee’s child because of a public official’s order relating to a public health emergency, or a public official’s determination that the employee or the employee’s family member would jeopardize the health of others.

Time to attend a meeting requested or required by school staff, or to attend a meeting regarding a child’s health condition or disability.

Which Employers Are Covered: All New Jersey employers, irrespective of size, are covered by this Act, including temporary help service firms. The Act specifically excludes public employers who are already required to provide sick leave to their employees.

Which Employees Are Covered: The Act applies to most employees working in New Jersey “for compensation.” It does not apply to employees in the construction industry employed under a collective bargaining agreement, per diem healthcare employees, or public employees who already receive sick leave benefits.

Which Family Members Are Covered: The definition of a “family member” under the Act is broad, including “child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner, or civil union partner of a parent or grandparent of the employee, or a sibling of a spouse, domestic partner, or civil union partner of the employee, or any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.”

Accrual of Leave: The Act requires that employers designate any consecutive, 12-month period as a “benefit year.” Current employees begin accruing sick time on the effective date of the Act (i.e., October 29, 2018). Employees hired after that date begin to accrue sick time on the first date of their employment. In each benefit year, employees can accrue one hour of earned sick leave for every 30 hours worked. Alternatively, the employer may provide its employees with the “full complement” of earned sick leave (i.e., no less than 40 hours of leave) on the first day of the benefit year. However the leave is provided, employers may limit the accrual of earned sick leave to 40 hours per benefit year.

Use of Leave: Employers may choose the increments in which earned sick leave can be used. However, employers may not choose an increment that is larger than the number of hours an employee was scheduled to work in a given shift. Employees may begin using sick leave 120 days after the Act becomes effective (i.e., February 26, 2019), or 120 days after their employment begins, whichever is later. Employers need not permit employees to use more than 40 hours of sick leave in a benefit year.

Carryover or Payout of Leave: Employers may offer to pay employees who accrue sick leave for their unused, accrued leave at the end of the benefit year. Those employees can choose to either accept the payment or carry over their unused sick time to the next benefit year. If the employer “frontloads” the entire amount of sick leave, and offers to pay out employees for their unused leave at the end of the year, the employees must accept the payment. Under no circumstances are employers required to permit employees to carry over more than 40 hours of sick leave from one benefit year to the next.

Termination: Unless an employer’s policy or collective bargaining agreement provides otherwise, employees are not entitled to payment for unused sick time upon separation from employment.

Notice of Leave: If the employee’s need to use earned sick leave is foreseeable, the employer may require that the employee provide no more than 7-days’ notice of the intention to use leave and the expected duration. Employees are obligated to make a reasonable effort to schedule sick leave in a manner that is not disruptive to the employer’s operations. Employers may prevent employees from using foreseeable leave on certain dates, and require that an employee provide reasonable documentation if sick leave that is not foreseeable is used on those dates.

If the employee’s need for leave is not foreseeable, the employer may require that the employee provide notice of his or her need to use leave as soon as practicable.

If an employee is absent for 3 or more consecutive days, the employer may require reasonable documentation verifying the need for sick leave.

Employer’s Recordkeeping and Notice Requirements: Employers are obligated to maintain records documenting the number of hours worked and the amount of sick leave taken by employees for a 5-year period. The failure to maintain these records will result in the presumption that the sick leave was not provided, unless clear and convincing evidence demonstrates otherwise.

Employers are also obligated to notify employees of their rights under the Act, including the amount of paid sick leave available, the terms of its use, and the remedies for a violation of the law. The required notice, issued by the State Department of Labor, must be posted conspicuously in the workplace and be accessible to all employees. Additionally, employers must provide employees with a written copy of the notice (1) by November 3, 2018; (2) at the time of hiring, if the employee is hired after that date; and (3) at any time that the employee requests.

Prohibited Actions and Enforcement: Employers may not discriminate or retaliate against any employee who takes sick leave under the Act. Additionally, an employer cannot consider sick leave taken by an employee as an “absence” for purposes of discipline or any other adverse employment action. An employer can, however, discipline any employee who uses earned sick leave for purposes other than that allowed by the Act.

The Act provides a rebuttable presumption that an employer has retaliated against an employee if the employer takes an adverse employment action against the employee within 90 days of the employee engaging in protected activity under the Act. Such protected activity includes filing a complaint with a government agency or court, informing another person of the employer’s alleged violation of the Act, cooperating with an investigation, opposing a policy or practice that is illegal under the Act, and informing another person of his or her rights under the Act.

Employees may sue their employers for violating the Act and can seek actual damages suffered as a result of the violation, plus an equal amount of liquidated damages.

Employer’s Existing Policy: Employers that already offer paid time off (PTO), personal days, vacation days, or sick days can continue to use those policies so long as employees can use that time off for the purposes provided by the Act and the policies otherwise comply with the requirements of the Act.

What New Jersey Employers Should Do: New Jersey employers should plan to review any existing sick leave or PTO policies to ensure that they comply with the requirements of this new law. If the employer does not yet provide such leave to its employees, it should develop the appropriate sick leave policies and procedures in order to comply with the law. Employee handbooks should also be revised as appropriate to account for these changes. Additionally, employers should obtain from the New Jersey Department of Labor and Workforce Development a copy of the notice that must be posted and distributed to all employees.

Finally, the New Jersey Department of Labor and Workforce Development recently issued proposed regulations that complement the Act. A public hearing on the proposed regulations is scheduled to occur on November 13, 2018. We will provide an additional update if and when those regulations become effective.

]]>https://www.laboremploymentreport.com/2018/10/22/new-jersey-paid-sick-leave-takes-effect-october-29-2018/feed/0Time to Update Those FMLA Forms!!!https://www.laboremploymentreport.com/2018/08/30/time-to-update-those-fmla-forms/
https://www.laboremploymentreport.com/2018/08/30/time-to-update-those-fmla-forms/#respondThu, 30 Aug 2018 17:52:31 +0000https://www.laboremploymentreport.com/?p=3032Finally! The new Family and Medical Leave Act (FMLA) forms and notices are here!

As FMLA-covered employers sadly know, the FMLA requires employers to provide certain very detailed notices to employees requesting FMLA. In addition, employers may request only very specific and limited information from employees and their (or their family member’s) health care providers. The Department of Labor provides model FMLA forms and notices that meet the FMLA’s requirements on its website. These documents must be submitted to the Office of Management and Budget for approval every three years. The last batch of documents expired on May 31, 2018, but the DOL continued to extend their expiration date on a month-to-month basis while it awaited approval from OMB. Now finally, the Department of Labor has issued its updated FMLA forms and notices, which expire on August 31, 2021:

Although the forms are essentially unchanged from the prior version, employers should begin using the new forms rather than the expired ones!

]]>https://www.laboremploymentreport.com/2018/08/30/time-to-update-those-fmla-forms/feed/0Another Misleading EEOC Press Release on the ADA…https://www.laboremploymentreport.com/2018/07/25/another-misleading-eeoc-press-release-on-the-ada/
https://www.laboremploymentreport.com/2018/07/25/another-misleading-eeoc-press-release-on-the-ada/#respondWed, 25 Jul 2018 17:53:45 +0000https://www.laboremploymentreport.com/?p=2991Recently, I blogged about a press release from the Equal Employment Opportunity Commission in which it misstated the law on post-offer medical examinations under the Americans with Disabilities Act. I was hoping that was a one-off mistake. But another recent EEOC press release has given me some concern, because I believe that it again misleads employers on their obligations under the ADA – this time with regard to associational discrimination.

In addition to prohibiting discrimination against and requiring reasonable accommodations for employees with disabilities, the ADA also prohibits discrimination against employees because of their association with disabled individuals. So, for example, an employer could not refuse to hire someone with a disabled child or spouse because the employer believes that its insurance rates will rise or the person will need a lot of time off to care for the family member. But, as the EEOC specifically states in its Questions and Answers About the Association Provision of the Americans with Disabilities Act:

4. Does the ADA require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability?

No. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.

And yet, in its recent press release, the EEOC seemed to suggest that such accommodation was required. As stated in the press release, the employee “sought a transfer to work nearer to where his son lived and requested leave to assist with his care.” The transfer was “to help deal with his son’s severe disability.” According to the EEOC, the employer “violated federal law when it denied [the] employee a transfer based on his son’s medical condition and then fired him…” The employer agreed to pay $100,000 to settle the EEOC’s claims on behalf of the employee.

But wait! If the employee is seeking a transfer and leave to care for his son, doesn’t that sound like an accommodation for the son’s disability? Which doesn’t need to be provided under the ADA!!!

I assume that, in actuality, the EEOC’s position is more nuanced. Perhaps (or likely) something along the lines of the employee was being denied leave and the transfer that would have otherwise been available to him and/or other employees for other reasons. So, for example, perhaps the employee would have been granted the transfer if the reason was because his spouse got a new job, or he liked the weather better in the new location. Or he would have been granted similar leave for vacation or to take classes, but not to care for his son.

But that’s not something that most employers would realize upon reading the press release. I believe that most readers, like me, would assume EEOC is saying that the employer is obliged to provide a transfer and leave specifically to care for the son – in other words, to accommodate the son’s disability. And that’s just wrong.

]]>https://www.laboremploymentreport.com/2018/07/25/another-misleading-eeoc-press-release-on-the-ada/feed/0When the FLSA and the ADA Meet…https://www.laboremploymentreport.com/2018/04/20/when-the-flsa-and-the-ada-meet/
https://www.laboremploymentreport.com/2018/04/20/when-the-flsa-and-the-ada-meet/#respondFri, 20 Apr 2018 13:11:36 +0000https://www.laboremploymentreport.com/?p=2902So after a hiatus of many years, the Department of Labor has once again begun issuing opinion letters, which are responses to a particular employer’s situation that offer guidance to all employers on specific issues under the Fair Labor Standards Act. This is quite exciting for employment law nerds like me – and one of these letters highlighted an interesting interaction between the FLSA and disability laws like the Americans with Disabilities Act and analogous state laws. (OK, I know that you’re on the edge of your seat now…)

Over the years, an accommodation request that has frequently come up for my clients is break time. Employees have requested more frequent breaks because of some medical condition to go to the bathroom, to eat or drink, to alleviate back pain from too much sitting, and to rest from standing. I’ve even had one employee with focus and concentration issues from a mental health condition request breaks to play video games! (And yes, his health care provider specifically noted that as an accommodation!). But do these breaks need to be paid? After all, the employee is not working for quite a lot of time during the workday.

As the DOL notes in its Opinion Letter FLSA2018-19, under the FLSA, rest breaks of up to 20 minutes are paid time. This is because such breaks are generally considered to be predominantly for the benefit of the employer. The thinking is that these breaks promote efficiency and re-energize the employee. But the DOL also notes that there are limited circumstances in which such breaks predominantly benefit the employee – and those breaks do not need to be paid.

In the Opinion Letter, the DOL states that breaks that are being taken because of an employee’s serious health condition under the Family and Medical Leave Act benefit the employee rather than the employer, and therefore are non-compensable. In making this determination, the DOL cited a federal case, Spiteri v. AT&T Holdings, Inc., in which an employee needed 15-minute breaks throughout the day because of back pain. The employer provided two paid 15-minute breaks and an unpaid 30-minute lunch break to all employees, which could be used by the employee for his back pain. But to the extent that he needed additional breaks, the employer told the employee that he would have to make up that time by adding on to the end of the workday. The employee thought this requirement violated the FLSA and that the employer failed to provide him a reasonable accommodation under the state disability law. But the wise court disagreed.

As to the FLSA claim, the court stated, “It is not objectively reasonable to believe that one should be paid for eight hours of work while spending a third to a quarter of that time on personal breaks.” Therefore, the employee could not have a good faith belief that there was a violation of the FLSA.

And as to the employee’s claim that requiring him to make up the break time made the accommodation unreasonable, the court held that, “Common sense and the law demonstrate that Plaintiff’s request that he be permitted to take unlimited personal breaks throughout the day, not make that time up and still be paid for an eight hour workday is not a request for a reasonable accommodation.” In coming to that conclusion, the court relied on commentary from the Equal Employment Opportunity Commission and the DOL.

The court first noted,

The Equal Employment Opportunity Commission (“EEOC”) has suggested that a reasonable accommodation under the Americans With Disabilities Act (“ADA”) for an employee with diabetes who needed to take additional breaks during the day to eat in order to maintain blood sugar levels, would be for the employer to allow the employee to take two additional 15 minute breaks each day and allow the employee to make this time up by arriving 15 minutes early and staying 15 minutes later. See http://www.eeoc.gov/laws/types/diabetes.cfm.

The court went on to cite the DOL’s commentary on the amendment to the FLSA to allow female employees to take lactation breaks for up to one year after the birth of a child. The DOL noted that, if the employer provided paid breaks to employees, an employee using that break to express breast milk would need to be paid for the break. But, “[a]dditional time used beyond the authorized paid break time could be uncompensated.”

So, bottom line – if an employee requires breaks because of a serious health condition under the FMLA or as a reasonable accommodation under the ADA, they are entitled to the normal paid breaks provided to all employees. But if they require breaks beyond the normal breaks, they can either be required to make up the time at the beginning or end of the workday, or those additional breaks may be unpaid. Really, I guess you can consider this a break for employers!

]]>https://www.laboremploymentreport.com/2018/04/20/when-the-flsa-and-the-ada-meet/feed/0No FMLA for Pet’s Deathhttps://www.laboremploymentreport.com/2018/03/16/no-fmla-for-pets-death/
https://www.laboremploymentreport.com/2018/03/16/no-fmla-for-pets-death/#respondFri, 16 Mar 2018 19:02:28 +0000https://www.laboremploymentreport.com/?p=2865In a previous post about pet bereavement leave, I noted that the Family and Medical Leave Act does not provide leave to care for an ill or dying pet. (Because a pet is not technically a family member. Really. Despite how we pet-owners feel about our fur babies. That’s mine in the picture.) But I also said that, “if an employee becomes depressed because of the death of a pet, it is possible that this could rise to the level of a disability that would require a reasonable accommodation under the Americans with Disabilities Act, or a serious health condition for which leave must be granted under the [Family and Medical Leave Act].” I further noted, however, that most people may experience grief but not become clinically depressed as the result of a pet’s death. So my interest was piqued by a recent case in which the employee claimed that his insomnia following his dog’s death was a serious health condition under the FMLA.

In Buck v. Mercury Marine, the employee had to put down his dog over the weekend. On Monday, he took a vacation day without telling his supervisor how upset he was about his pet’s death. On Tuesday, he left a message for his supervisor, asking for a call back and stating that he was having a really hard time with his dog. In a follow up call, the employee supposedly told his supervisor that he was unable to sleep because of the dog’s death and that he would not be able to work that day. The employee worked on Wednesday, and after work he went to a clinic where he was seen by a nurse, who gave him a sleeping pill and a note that said: “This is to certify that Joseph was seen in the clinic on 5/29/2014. Please excuse Joseph from missed work May 28th. REMARK: Please excuse missed work on May 28th. Joe was in the clinic for evaluation of situational insomnia. Treatment has been initiated.”

The employee’s absence was counted as an occurrence under the attendance policy and led, in part, to his eventual termination for poor attendance. In his subsequent lawsuit, the employee claimed that his May 28 absence should have been covered by FMLA, that he should have been told by the employer that it was FMLA-covered, that the absence should not have been counted against him under the attendance policy, and that he therefore should not have been fired.

The court found, however, that the employee did not have a “serious health condition” under the FMLA. In order to qualify as a “serious health condition,” the condition must involve either (1) incapacity for more than three consecutive full calendar days with treatment by a health care provider at least twice in 30 days, or (2) a chronic condition requiring visits to a health care provider at least twice a year. The court acknowledged that insomnia that met either of these standards would qualify as a “serious health condition,” but the employee’s particular insomnia did not. At most, he missed only two consecutive days of work, and there was no indication of follow up treatment by a health care provider.

The court also found that the employer had no obligation to give the employee information about FMLA because the employee had not provided sufficient information for the employer to realize that FMLA could apply. The employee told his supervisor he was upset over the death of his dog and had not slept for days. The note from the nurse indicated only that the employee had been evaluated for situational insomnia and treatment had begun. But the court noted that, under the controlling law in the jurisdiction, the employee must first notify the employer of the seriousness of the health condition, and “[e]ven a doctor’s note is insufficient if the note does not convey the seriousness of [the plaintiff’s] medical condition.” (internal quotations omitted). The information from the employee here did not meet this standard.

This case provides a good reminder that not all health conditions will trigger the FMLA. Even under sad circumstances. RIP, Rover.

]]>https://www.laboremploymentreport.com/2018/03/16/no-fmla-for-pets-death/feed/0More On Maryland Earned Sick and Safe Leave – Enforcement Delay and Collective Bargaining Agreementshttps://www.laboremploymentreport.com/2018/01/23/1-51/
https://www.laboremploymentreport.com/2018/01/23/1-51/#respondTue, 23 Jan 2018 20:11:59 +0000https://www.laboremploymentreport.com/?p=2824Today, January 23, 2018, Senator “Mac” Middleton filed a bill to postpone for 60 days the enforcement of Maryland’s new sick and safe leave (SSL) law by the state Commissioner of Labor and Industry. Given the law’s effective date of February 11, 2018, this means that enforcement would begin on April 12, 2018. We strongly note, however, that compliance – including the commencement of SSL accrual – is still required as of the February 11 effective date.

The bill, which we believe has a strong likelihood of passing, was filed as “emergency legislation.” This means that, as long as it is passed by 3/5 of the total members of each House, it will take effect immediately upon signature by the Governor. The bill has been expedited for hearing before the Senate Finance committee, of which Senator Middleton is chair, on Wednesday, January 24.

On another point of interest to unionized employers, we note that the Maryland Healthy Working Families Act contains a provision that provides relief for some employers with existing collective bargaining agreements (CBAs), for the term of the agreement. Specifically, the law states “That this Act. . . may not be applied or interpreted to have any effect on or application to any bona fide collective bargaining agreement entered into before June 1, 2017, for the duration of the contract term, excluding any extensions, options to extend, or renewals of the term of the original agreement.”

As originally intended, the language would have exempted all current CBAs upon the passage of the bill last General Assembly session. Due to Governor Hogan’s veto of the bill and the delay until the recent veto override by the General Assembly, there is now a gap – so that companies that entered into a CBA on or after June 1, 2017 are required to come into compliance with the law upon its effective date of February 11, 2018.

Unionized employers with pre-June 1, 2017 CBAs should be aware that compliance will be required immediately upon expiration of the current contract, regardless of any extensions or renewals of the contract.

In addition, we would like to note that the law contains an exception specific to construction industry employees who are covered by a bona fide CBA in which the requirements of the law are expressly waived in clear and unambiguous terms. (By the terms of the law, “construction employees” do not include janitors, cleaners, security officers, concierges, doorpersons, handypersons, or building superintendents – who are entitled to the benefits of the law). This waiver exception is not available to any other unionized employers, who will be required eventually to comply with the law – whether now or at the end of their contract term.

]]>https://www.laboremploymentreport.com/2018/01/23/1-51/feed/0EEOC, NLRB and DOL Shutdown Contingency Plans – The 2018 Editionhttps://www.laboremploymentreport.com/2018/01/19/eeoc-nlrb-and-dol-shutdown-contingency-plans-the-2018-edition/
https://www.laboremploymentreport.com/2018/01/19/eeoc-nlrb-and-dol-shutdown-contingency-plans-the-2018-edition/#respondFri, 19 Jan 2018 15:21:05 +0000https://www.laboremploymentreport.com/?p=2816Here we are again on the brink of another possible federal government shutdown, and employers may be wondering how it may impact them. The last time, during the 2013 federal government shutdown, we provided a summary of the shutdown contingency plans for the major employment-related agencies – the Department of Labor (DOL) (which includes the Occupational Safety and Health Administration (OSHA) and the Wage-Hour Division (WHD)), the National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC). So we thought we’d provide you with an updated summary of these plans, which set forth what the agencies will and will not do if there is an actual shutdown.

The DOL’s contingency plan (updated in 2017 but just issued on January 18, 2018) includes a submission from each of its divisions, identifying what functions they will continue during the shutdown. All other functions will be suspended during the shutdown. Of particular relevance to private employers are the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division (WHD).

OSHA’s contingency plan provides that it will continue to address emergency situations, which includes the following:

Inspection of imminent danger situations, meaning that “a danger exists which could reasonably be expected to cause death or serious physical harm immediately”

Investigation of workplace catastrophes and deaths

Investigation of safety and health complaints or other information received from police, fire departments or other first responders, media sources or employers establishing that employees are potentially exposed to hazardous conditions that present a high risk of death or serious physical harm with the potential to cause death

Follow-up inspections of establishments with high gravity serious violations, where the employer has failed to provide evidence of abatement in response to OSHA’s request

Enforcement activities on open cases needed to meet agency six-month statutory deadlines where those cases establish employees are potentially exposed to hazardous conditions that present a high risk of death or serious physical harm with the potential to cause death

The DOL’s Wage and Hour Division, which enforces the Fair Labor Standards Act and the Family and Medical Leave Act, stated in its contingency plan that it will only take action “Necessary to respond to emergencies involving the safety of human life or the protection of property.” This means that it will immediately investigate incidents involving the serious injury or death of a minor while employed, any transportation accident, or any housing safety violation involving the serious injury or death of a farm worker.

In the NLRB’s contingency plan (which was updated and issued on January 18, 2018, just in time for the looming shutdown), the NLRB lists those services and programs that will remain operational during the shutdown, which are intended to protect federal legal actions already taken or to protect life or property. The NLRB will:

Continue to litigate necessary court actions

Maintain the Office of Inspector General hotline, to receive calls in order to protect safety of life and property

Maintain the emergency contact telephone number for the public

The NLRB has also identified programs and services that will be closed during the shutdown, as a result of which the following functions will not be performed:

Information Officer services to receive calls from the public and provide information about the NLRB’s functions and procedures

Outreach and Public Affairs services, including the website

Typical Inspector General services

The EEOC’s contingency plan (which was previously issued on September 25, 2015) states that the EEOC will continue to perform only those functions “involving the safety of human life or the protection of property.” Specifically of interest to private sector employers, the EEOC will:

Docket new charges

Continue to litigate lawsuits where a continuance has not been granted by the court

If necessary upon reviewing a new charge, file a court action to obtain preliminary relief to protect life or property

Maintain the EEOC’s information systems

Maintain the security of the EEOC’s offices and property

Perform necessary administrative support to carry out the above functions

The EEOC has also listed the functions that it will not perform during the shutdown:

Staff will not be available to answer questions or respond to correspondence

Charges will not be investigated

Litigation will be put on hold, to the extent courts grant the EEOC’s requests for extensions of time

Mediations will be cancelled

Outreach and education events will be cancelled

Freedom of Information Act (FOIA) requests will not be processed

We are hoping that a shutdown will be averted, but it may be helpful to know what to expect if it occurs.

]]>https://www.laboremploymentreport.com/2018/01/19/eeoc-nlrb-and-dol-shutdown-contingency-plans-the-2018-edition/feed/0Governor Hogan’s Paid Leave Compromise Bill – What Does It Really Do?https://www.laboremploymentreport.com/2017/11/29/governor-hogans-paid-leave-compromise-bill-what-does-it-really-do/
https://www.laboremploymentreport.com/2017/11/29/governor-hogans-paid-leave-compromise-bill-what-does-it-really-do/#respondWed, 29 Nov 2017 17:02:00 +0000https://www.laboremploymentreport.com/?p=2752As Maryland employers are likely aware, the General Assembly passed a paid sick leave bill (HB1) this past session, which was vetoed by Governor Hogan. The Governor has now introduced a new paid leave bill – the Paid Leave Compromise Act of 2018 – that will be filed as emergency legislation when the next legislative session opens on January 10, 2018. The General Assembly’s Democratic leaders have nonetheless stated that they still plan to override the veto, making HB1 the law.

HB1, the “Maryland Healthy Working Families Act,” mandates that employers provide paid leave to employees to use for personal and family illness and health care, maternity or paternity leave, and to address domestic violence issues. Employers with 15 or more employees would be required to provide up to 40 hours (5 8-hour days) of paid leave, while smaller employees would be required to provide the same amount of unpaid leave.

The business community had many concerns about HB1, which have been detailed in a report prepared by the Committee on Paid Leave, a task force that was created by Governor Hogan and led by Maryland Secretary of Labor Kelly Schulz. In his compromise bill, which uses HB1 as its starting point, Governor Hogan addressed a number of those concerns, including the following:

The size of the employer required to provide paid leave is increased from 15 to 25 employees, and compliance is phased in over several years depending on the size of the employer.

The requirement for smaller employers to provide unpaid leave is removed.

The eligibility period to use the leave is extended from 106 days to 120 days (which eradicates the need to provide leave to seasonal employees).

Local jurisdictions are preempted from enacting paid leave legislation (which eliminates the possibility that an employer would have to comply with a patchwork of local laws, in addition to state law).

The rebuttable presumption of violation by the employer is removed, meaning that violations must be proven rather than disproven.

Some of the more onerous penalties and damages have been eliminated.

A hardship waiver is available based upon a showing of significant financial hardship.

In connection with his compromise bill, the Governor also stated that he would introduce the Small Business Relief Tax Credit, which provides tax credits to businesses with fewer than 50 employees that provide paid leave benefits.

Although the Governor’s compromise bill contains provisions that reduce the onerous impact of HB1 on businesses, there are still some points of concern from an employer perspective. Among these are the following:

The leave is not limited to purposes of illness, health care, and domestic violence, but may be used for any reason. This essentially requires covered employers to provide paid vacation to all employees.

Employers may not require verification of the use of leave. This affects the employer’s ability to ensure that unscheduled, last minute leave requests are for a valid purpose.

Employers may not discipline employees for using leave. Thus, employees may abuse the leave by calling out at the last minute at a whim, and employers have no recourse despite negative impacts on business operations.

Employers apparently may not deny the use of leave (except in the case of service providers to developmentally disabled or mentally ill individuals, and only under specific circumstances).

In his announcement of the compromise bill, the Governor invited the Democratic legislative leaders to work with him on a solution to the paid leave debate.